High Court Judges
keep Kenyans guessing
The year 2012 is a great one which will definitely change our governance systems in Kenya, but I am a worried man, very worried indeed when our learned judges of High Court failed to demonstrate their patriotism and independence of judiciary as entrenched in our Constitution of 2010.
One would wonder why I’ve to pen down my disappointment with what I describe as vague High Court ruling on the first election date under our new order (constitution) The Panel of three high court judges:- Justices Isaac Lenaola, David Majanja and Mumbi Ngugi as law scholar, one professor Makau Mutua quoted acted like a cowardly Kanu-era court. Their interpretation of law was poorer than Wanjikus / Mwikalis or Atieno’s, period.
Why do I accuse the three judges of law .Allow me to get down to the basics .First we need to identify and confirm that there was a poor draftsmanship at the Committee of Experts ( CoE ) under the chairmanship of Mr Nzamba Kitonga, a Senior Counsel among the Kenyan 5 not the infamous ‘‘ Ocampo 6’’ ( the rest being Dr Willy Mutunga, Paul K Muite, Gibson Kamau Kuria and Mutula Kilonzo- a new convert from illiberal Kanu regime)
The COE only failed to specify the first election date but instead gave us many provisions starting with 2nd Tuesday of every August of the fifty year but again added other transitional clauses like section 12 of the sixth schedule which temporarily constitutionalises the National Accord and the offices of the 2 principals thus giving President Kibaki in consultation with the Prime Minister this one last time so as to pave way for the first general elections to be conducted this year either in August or December provided, however, the National Assembly is dissolved 60 days prior to the elections
That fact of mix-ups at draftsmanship is what gave room for our debate as to when we should vote in a new team under new order. By design the Parliament delayed the legislation and formation of Independent Electoral and Boundaries Commission ( IEBC ) subsequently pushing the August date, To perfect this scheme our bloated cabinet of 44 plus members met at State House, ate massively and concluded to fix the date on third week of December 2012.
How exactly did our learned judges fail us? Without beating about the bush, let me just remind the areas of our concern .One, after the election date became open to debate, some fellows from Civil Society petitioned the Supreme Court of Kenya to set the election date while Kilome MP John Harun Mwau filled a constitutional case at the High Court challenging the Supreme Court from setting the date of the first election. The president of the supreme court who is also the Chief Justice concurred with Mwau’s submissions that it lies with the mandate of High Court rather than the Supreme Court, to interpret the constitution.
Then the C.J directed all the constitutional applications be consolidated together, heard and determined at the High Court so as to give avenue for appeal should there be need.
I agree with the process as intended but the problem with our judges of law is that they lacked substance, remember in law both form and substance are of equal value and one cannot stand without the other, to elaborate this, the High Court bench behaved like the defunct Electoral Commission of Kenya Chairman Mr Samuel Kivuitu who had all the features of an undecided referee who can ask the fans or coaches if a score is really a score instead of confirming .
How did this happen ? Instead of High Court deciding on either August as per the letter or December as per the spirit of politicians / cabinet it went further and proposed March 15th 2013. About 3 decades ago, I was a std 4 pupil at Musaalani primary in Machakos County when our Head teacher – cum-CRE teacher gave us a biblical quiz which had 2 choices of either John or Peter. One would have been condemned by Mr.Michael Ngololo if he / she would come up with a third choice of Paul. So our judges absconded their central role of arbiter and instead of determining for us ,they came up with ‘‘ weird’’ proposed of expiry of 10th parliament by January 15th 2013 hence elections be conducted after 60 day ( March 15th ) .
Alternatively, the judges seemed to sugest, that Kenyans persuade Kibaki and Raila to agree in writing to dissolve parliament and conduct elections after 60 days. This does not make sense but constitutes a legal baloney and hogwash.
It defeats both logic and common sense with having law courts which push the ball back to the political class which lacks jurisdiction, competence and capacity to handle such weighty issue which is reserved for the law courts.
My prayer is that the Court of Appeal to reverse without delay this needless legal mumbo-jumbo which can hold the nation hostage, causing serious constitutional crisis.
And by the way, what is the meaning of transitional management in regard to sixth schedule. My reading and average understanding is that sixth schedule is a bridge between the old and new constitutional dispensations to allow a seamless transition but not to extend the status quo.
